The Irish Human Rights and Equality Commission (IHREC) has been joined as a participant in two Supreme Court appeals that claim the use of mobile phone records to secure convictions was a breach of privacy rights.
Caolan Smyth (30) is appealing against his conviction for the attempted murder of James “Mago” Gately and possession of a firearm with intent to endanger life, while Gary McAreavey (55) is seeking to overturn his conviction for the offence of assisting an offender.
Both denied the charges.
Mr Gately, who the Criminal Assets Bureau alleges is heavily involved with an organised crime group, was shot five times by the driver of a car that pulled up beside him at a petrol station on Clonshaugh Road on May 10th, 2017.
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Smyth, formerly of Cuileann Court, Donore, Co Meath, was alleged to be the shooter.
The car was later found burnt out, and McAreavey, formerly of Gort Nua, Castlebellingham, Co Louth, was alleged to have purchased petrol for the purpose of destroying it.
Lawyers acting in the related appeals were asked by Supreme Court judge Mr Justice Maurice Collins on Wednesday to include in a file to the court the recent ruling rejecting Graham Dwyer’s appeal against his 2015 conviction for the murder of childcare worker Elaine O’Hara.
The Court of Appeal’s judgment, given last week, dismissed Dwyer’s case on all grounds, including in relation to the admissibility of mobile phone call data records. He still has the option of seeking a Supreme Court appeal.
Managing the cases of Smyth and McAreavey before hearing, Mr Justice Collins said the Dwyer judgment “probably merits” inclusion among the case law to be submitted as part of the appeals, as the issues are “very similar”.
The appeals have been scheduled for two days beginning April 25th.
There was no objection to an application from IHREC to be joined as a participant to the appeals; Mr Justice Collins said it was an “appropriate” case for the commission to participate in.
Barrister Mark Lynam said his client, IHREC, wanted to make submissions on issues relating to the retention of data and access to data.
Smyth and McAreavey pleaded not guilty to their respective charges but were found guilty following a trial at the Special Criminal Court in January 2021. Smyth was jailed for 20 years, while McAreavey received a three-year sentence.
Central to their Supreme Court appeals is an argument that certain evidence from telephone data, obtained pursuant to a 2011 law, was inadmissible as it breached Irish and EU law.
The data was used to connect an unregistered phone to Smyth and to correlate the movements of the car with cell sites. It also showed contact between this phone and another unregistered phone attributed to McAreavey.
Neither of the men conceded ownership of either phone, and the Special Criminal Court found this had implications for the extent to which they could argue privacy rights had been engaged.
Their 2020 Special Criminal Court trials occurred after the Supreme Court had referred questions to the Court of Justice of the EU relating to the indiscriminate retention and access of mobile phone metadata in the case of Graham Dwyer.
The European court subsequently upheld Dwyer’s challenge to the legality of Ireland’s metadata regime as set out in provisions of the Communications (Retention of Data) Act 2011.
Smyth and McAreavey appealed to the Court of Appeal, which delivered judgment after the CJEU’s ruling in Dwyer’s case. The appeal court held that the 2011 Act was still the law of the land when the investigation into the attempted murder was carried out and thus it enjoyed a presumption of constitutionality.
McAreavey’s case concerns a second ground of appeal relating to the level of knowledge required to be proved to convict a co-accused of the offence of assisting an offender. The trial court found it was probable, but not proven, that McAreavey knew precisely what his co-accused had been doing.
